RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – ADMISSIBILITY OF PRIOR PQME REPORTS TO CURRENT PQMES OR MAYBE WE DON’T NEED TO SHOUT ABOUT IT?
FROM MY BAR AT HOME:
Over the past year and change, my kids and husband have gotten used to hearing me yell at my laptop, and today was no exception.
“Yes they are!” I exclaimed.
“No they aren’t!” barked back Newt Newbie, my least favorite applicant’s attorney.
“Yes. They. Are!”
Newt Newbie, an applicant’s attorney who has limited experience but a very healthy sense of confidence, was exasperating me once again. We were having a discussion over Zoom because – surprise – we couldn’t agree on a place to meet at for happy hour.
In today’s exercise in patience, I was arguing with Newt about whether the reporting from a replaced panel QME (PQME) was admissible and could be reviewed by the subsequent panel doctor. My position was that, yes, the subsequent doctor needs to see the record that was created before them, so of course they could have access to the prior reports. Newt was arguing no, that prior approved PQME doctor and all of their reporting are out of consideration.
In the case in question, the applicant, a young man named Ren McCormack, strained his back when he improperly lifted a large bag of flour at the mill where he worked. Ren made a claim for temporary disability benefits, which was supported by the treating doctor’s reporting. Defendant objected to the treating doctor’s reporting and a panel was obtained from which Dr. Shaw Moore was selected.
The case really blew open when the employer discovered some security footage taken of the applicant in their warehouse afterhours. The footage depicted the post-injury and very antsy applicant (who also happened to be an amateur gymnast) dancing, doing cartwheels and performing some impressive and dangerous double-bar routines from the beams in the warehouse. This footage had been sent to the original PQME, Dr. Moore, who found that the applicant was not temporarily or even partially disabled. He wanted to perform more diagnostic studies before issuing a final report addressing impairment, if any.
Before those studies could be performed and a final report issued though, Dr. Moore won the lottery and decided to quit while he was ahead, opting to retire. This of course necessitated a replacement panel of QMEs under Title 8, California Code of Regulations, Chapter 1, Division of Workers’ Compensation-Qualified Medical Evaluator, Article 3, §31.5(a)(5) (CCR §31.5(a)(5)), from which Dr. Andy Beamis was selected.
Newt was giving me a hard time about sending the reporting of Dr. Moore to the new PQME, Dr. Beamis. He contended that since the physician was replaced, the initial reporting was not admissible for any purpose and should not be reviewed by Dr. Beamis. To take things a step further, he was threatening to file for an Expedited Hearing, arguing that with Dr. Moore’s reporting inadmissible the defendant should be paying temporary disability based on the unrebutted reports from the primary treating physician. He even had the gall to raise the issue of costs and sanctions while his client was out in the world dancing up a storm!
As a reminder, loyal Home Bar patrons, the rules of evidence in workers’ compensation are far more loosey-goosey than in other areas of law. California Labor Code §5708 states in relevant parts as follows:
All hearings and investigations before the appeals board or a workers’ compensation judge are governed by this division and by the rules of practice and procedures adopted by the appeals board. In the conduct thereof they shall not be bound by the common law or statutory rules of evidence and procedure, but may make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division. (emphasis added)
This means that the California Code of Evidence does not generally apply, and instead admissibility of evidence has developed through other provisions in the Labor Code, California Code of Regulations and case law.
I was confident in my position regarding the admissibility of Dr. Moore’s report because of these looser rules of evidence, and also because I had recently read the recent panel decision published April 12, 2021, Celia Cervantes vs. Pacific American Fish Co.; Majestic Insurance Co.; Technology Insurance Co., administered by Amtrust (ADJ8204680).1
In Cervantes, the applicant initially resolved her cumulative trauma claim to the lumbar spine, cervical spine and right upper extremity via a Stipulated Award in 2015. A Petition to Reopen was filed, alleging new and further disability to the psyche, head, jaw and fibromyalgia. A panel of QMEs was obtained in rheumatology from which a Dr. Silver was selected.
Dr. Silver examined the applicant, but when they failed to issue a timely report the applicant objected to the report as untimely. A report was eventually issued, but by then Dr. Silver was ultimately replaced for reasons that are not entirely clear from the decision, and may not have been based on the timeliness objection. A second panel was issued and a doctor was selected, but they ended up being replaced because that physician could not provide a timely appointment.
A third PQME was obtained from which a Dr. Salick was selected. An examination occurred and a timely report issued. However, Dr. Salick was also replaced per the parties’ agreement per CCR §31.5(a)(8), which allows for replacement for the applicant’s geographic convenience.
A fourth panel was issued and a Dr. Freed was chosen. When Dr. Freed examined the applicant, he was not provided with the reports of the two rheumatology PQMEs who came before him. Dr. Freed’s resulting report specifically requested the older records in order to review the applicant’s complaints and physical findings at the time of his predecessors’ exams.
The defendant objected to providing the reports to Dr. Freed for his review, arguing that they were inadmissible. The matter was ultimately set for trial on the issue of whether or not the current PQME could review the reports from the previously replaced doctors, and whether the earlier reports would be admissible at trial.
The Workers’ Compensation Judge (WCJ) found that the reports were not admissible and should not issue to the rheumatologic PQME. The applicant then filed for reconsideration, which was granted.
Upon review, the Workers’ Compensation Appeals Board (Appeals Board) remarked on the expansive nature of admissibility of evidence in workers’ compensation. In their discussion, they referred to the notion that “statutory and case law favor the admissibility of medical reports provided they were obtained in accordance with the Labor Code.”
The Appeals Board explained that medical reports can be found inadmissible if the parties engaged in misconduct, namely ex parte communication with the medical-legal evaluator in defiance of the Labor Code. They also pointed to the inadmissibility of reports which are generated by a private expert solely to rebut the opinion of the panel QME (Batten v. Workers’ Comp. Appeals Bd.(2015) 241 Cal. App. 4th 1009). Neither of these elements were in play in this case. The reports were admissible.
Once their admissibility had been established, the Appeals Board discussed whether they could be reviewed by the latest PQME, Dr. Freed. They pointed to Labor Code §4062.3, which advises the parties what information may be provided to the PQME and reads in relevant part as follows:
(a) Any party may provide to the qualified medical evaluator selected from a panel any of the following information:
(1) Records prepared or maintained by the employee’s treating physician or physicians.
(2) Medical and nonmedical records relevant to determination of the medical issue.
(b) Information that a party proposes to provide to the qualified medical evaluator selected from a panel shall be served on the opposing party 20 days before the information is provided to the evaluator. If the opposing party objects to consideration of nonmedical records within 10 days thereafter, the records
shall not be provided to the evaluator. Either party may use discovery to establish the accuracy or authenticity of nonmedical records prior to the evaluation
The Appeals Board found that the prior PQME reports were comprehensive medical records under the Labor Code and thus able to be reviewed by Dr. Freed.
They went on to discuss that not only was there no apparent basis for the exclusion of the reports to be provided to Dr. Freed for review or to otherwise find them inadmissible, the specific request for the records by Dr. Freed only further supported the need for their review by the doctor in order to create a report that could be considered substantial medical evidence.
In order for a medical report to be considered substantial medical evidence, the Appeals Board stated:
… a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on a adequate examination and history, and it must set for reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70.Cal.Comp.Cases 604, 621) (Appeals Board en banc).
Not only are the parties entitled to these records being issued to the doctor as medical records, they must be reviewed in order for the doctor’s opinion to be considered substantial.2
Ultimately, the Appeals Board found that the reports from the prior rheumatologic panel QMEs were both reviewable by the current doctor and admissible as evidence. The issue was remanded to the trial level.
I sent a copy of Cervantes along to Mr. Newbie and explained that his position was not viable. There is no indication in our case that Dr. Moore’s reports should be considered inadmissible and, under our expansive understanding of admissible evidence in workers’ compensation, there is nothing barring their review by the next doctor.
After reviewing the case and realizing how much time he was about to waste, Newt relented and said he was going to withdraw his objection to the records being issued to the second panel QME. I prepared myself another Whistle Pig Manhattan straight up with an extra cherry and toasted to my success.3
All characters from my online happy hour are fictional and the storyline is simply a product of my animated imagination.
Of note in Cervantes was the limited discussion as to the basis for the replacement of Dr. Silver, the first panel QME. There is information in the decision that applicant’s counsel initially objected to their reporting as untimely. While the decision indicates that the doctor did issue a report which was dated before the objection issued, it is not discussed as to whether or not that report actually was issued timely or why the doctor was ultimately replaced.
Any good defense attorney would know that key here is §CCR 35(e), which specifically states: “In no event shall any party forward to the evaluator: (1) any medical/legal report which has been rejected by a party as untimely pursuant to Labor Code section 4062.5 …” While the regulation does not speak to the admissibility of the report, it does indicate that if a doctor is replaced for an untimely report, that untimely report should not be reviewed by subsequent panel doctors. It is interesting that this issue does not appear to have been raised by defendants in their attempts to block the reports from being reviewed and admissible.
Cervantes lacks the designation “significant panel decision,” however, the WCAB may consider panel decisions to the extent that it finds their reasoning persuasive, as laid out in its en banc decision Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, 242, fn. 7.
Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, would draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
Bottoms up and keep washing your hands.
1 A copy of Cervantes may be obtained via email request.
2 I discussed substantial evidence at length in two recent editions of George the Bartender, George The Bartender’s Dispatches From Online Happy Hour – When A Report Is Substantial Evidence Or When It’s For The Birds and George The Bartender’s Dispatches From Online Happy Hour –We Revisit Substantial Evidence Or, Upon Further Review, Maybe Not The Most Germane Beach Discussion
3 Legend has it that the Manhattan was invented by New York City socialite, Ms. Jennie Jerome, aka Lady Randolph Churchill, in the mid-19th century at a party for the newly elected Governor of New York, Samuel J. Tilden, held at the estimable gentleman’s club called the Manhattan Club. Debatable perhaps because at the time Lady Randolph was in fact in England and very much pregnant with one Sir Winston Churchill, but I digress.